Just weeks after its controversial patent cooperation agreement with Microsoft (MSFT), Novell (NOVL) is hitting out at statements made by Microsoft executives that the deal acknowledges that Linux infringes on its intellectual property.

Novell has been under fire from many members of the Linux and open-source community since entering into a set of broad collaboration agreements with Microsoft to build, market and support a series of new solutions that will make Novell and Microsoft products work better together, including providing each other's customers with patent coverage for their respective products.

Recent statements from Microsoft officials such as CEO Steve Ballmer that the deal effectively acknowledges that Linux infringes on his company's intellectual property have exacerbated these criticisms from the open-source community.

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The brouhaha culminated in Novell CEO Ron Hovsepian releasing an open letter to the Linux and open-source community on Nov. 20, in which he says the company "strongly disagrees with and disputes" these Microsoft statements.

"Since our announcement, some parties have spoken about this patent agreement in a damaging way, and with a perspective that we do not share. We strongly challenge those statements," he said.

"We disagree with the recent statements made by Microsoft on the topic of Linux and patents ... Our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property," Hovsepian said in the letter.

When Novell entered the patent cooperation agreement with Microsoft, it did not agree or admit that Linux or any other Novell offering violated Microsoft patents, he said, adding that the agreement with Microsoft in no way changed Novell's stance on software patents.

John Dragoon, senior vice president and chief marketing officer for Novell, based in Provo, Utah, told eWEEK in an interview following the release of the open letter that when a customer is making a decision whether or not to deploy in certain environments and there are impediments to that deployment, whether real or imagined, "It is in Novell's interest — selfish interest, I will admit — to advance-remove whatever those inhibitors be to the advancement of Linux and open source."

The agreement with Microsoft removed a lot of those inhibitors, in that it addressed technical collaboration issues, business collaboration issues and some customer concerns, he said.

"Some customers, for whatever reasons, decided they did not want the hassles of addressing intellectual property issues. Our doing this agreement with Microsoft is not an admission that we believe Linux is impugned in any way, but it is an admission that we wanted to remove whatever impediments there are to the adoption of Linux and open source and do that on behalf of our customers," Dragoon said.

"For some customers, not all, this was an impediment, and we addressed it. Some customers had [reason to] pause because of these reasons and we have now removed that pause for them and that's good for Linux and open source," he said.

While Dragoon acknowledged that Microsoft has its own opinions on the agreement, he said Novell will continue to compete aggressively with Microsoft at the point of customer transactions. But there are a lot of customers using both environments, and Novell wants them to use Novell's SUSE Linux when deciding to use the open-source operating system, he said.

David Kaefer, director of business development for intellectual property and licensing at Microsoft, based in Redmond, Wash., told eWEEK in an interview that while Microsoft stood behind Ballmer's assessment of the deal and its implications, the bigger issue was that customers wanted the company to work with Novell, and there had to be a collaboration model to allow this.

Kaefer said neither Microsoft nor its customers believe that because there are two separate technology paths, open source and proprietary, these should not interact simply because they are based on different models with communities that believe in different things.

"Microsoft doesn't believe that, and I don't think most customers believe it either. So the reality is to foster collaboration and find ways to promote mutual respect. This deal needs to get measured in part on what it delivers over time," he said.

"I think a lot of people will parse words over the coming weeks and months, but customers will judge the solutions that come to market and the open-source community will judge whether or not they can do what they have always done in terms of having freedom of development," Kaefer said.

But the criticism and fallout from the deal continue unabated.

Earlier in the day on Nov. 20, and before Hovsepian released his open letter, Marc Fleury, the senior vice president and general manager of the JBoss division of Red Hat (RHAT), speaking in Berlin, said the Microsoft/Novell deal was "more interesting, and what they are trying to do is fork the legal support by saying they will not sue."

Fleury said JBoss knew when it was acquired by Red Hat earlier in 2006 that "there was a high likelihood of an answer by IBM (IBM), Microsoft, Oracle (ORCL)" and others.

However, "the Microsoft [potential countermove] was always a legal threat, and it's a lot more clever than the one from Oracle, which was a for-show move," Fleury said.

Moreover, Fleury said that when Red Hat sealed the deal to acquire JBoss last April, both he and Red Hat CEO Matthew Szulik personally reached out to Novell CEO Ron Hovsepian "immediately and tried to preserve that [Linux core] relationship, in response to Microsoft. But now I think the boys over in Redmond are laughing their butts off" over making the recent interoperability pact with Novell.

In fact, in Barcelona the week of Nov. 13 at Microsoft's TechEd Europe: IT Forum conference, Bob Muglia, Microsoft's senior vice president for servers and tools and one of the lead negotiators on the Novell deal, told eWEEK that there were two primary motivations behind the agreement.

"One was interoperability, which is very positive for us in every sense," Muglia said. "The second is to recognize, unambiguously, that there is value to intellectual property within open-source products that are used by customers, and that that intellectual property should be honored."

For its part, Microsoft released a statement Nov. 20 following the publication of Hovsepian's open letter, saying, "Microsoft and Novell have agreed to disagree on whether certain open-source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents. The agreement between our two companies puts in place a workable solution for customers for these issues, without requiring an agreement between our two companies on infringement."

The statement, sourced only to a company spokesperson, also tried to downplay the disagreements, saying, "Both of our companies are fully committed to moving forward with all of the important work under these agreements. The agreements will advance interoperability between Windows and Linux and put in place a new intellectual property bridge between proprietary and open-source software. Customers and participants throughout our industry will clearly benefit from these results."

Microsoft also said it respected Novell's point of view on the patent issue, even "while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement," the spokesperson said.

However, Microsoft had undertaken its own analysis of its patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. "We are gratified that such a solution is now in place," the spokesperson said.

In his open letter, Hovsepian said Novell had leveraged its strong patent portfolio for the benefit of the open-source community and remains committed to protecting, preserving and promoting freedom for free and open-source software.

"Novell recognizes that the community of open-source developers is essential to all its Linux activities. We welcome dialogue with the community as to how we can continue to work together toward these common goals," he said.

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